Ethical and legal debates in Irish healthcare

Confronting complexities

Mary Donnelly, Claire Murray, Mary Donnelly, Claire Murray

• Publisher: Manchester University Press
• Year: 2016
• Print ISBN: 9780719099465
• eBook ISBN: 9781784996581
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Political Ideologies
• Index: Politics & International Relations

The Irish health system is confronted by a range of challenges, both emerging and recurring. This collection provides a foundation for ongoing engagement with selected issues in contemporary Irish health contexts. It includes contributions from scholars and practitioners across a range of disciplines. The essays are theoretically informed and are grounded in the realities of the Irish health system, by drawing on contributors' contextual knowledge. The focus of the collection is interdisciplinary and the essays are situated at the intersection between ethics, law, medicine and policy. It draws out the interlinking themes of context and care, rights and responsibilities, regulating research and oversight of decision-making. This book makes an informed and balanced contribution to academic and broader public discourse. It will be of interest to academics and postgraduate students in ethics, law and health and those outside the academic sphere who must engage critically with the issues addressed.

I

CONTEXT AND CARE

1

Reproductive justice in Ireland: a feminist analysis of the Neary and Halappanavar cases

Joan McCarthy

Introduction

This chapter analyses two Irish case studies concerning reproductive justice and maternal health that raise serious ethical and legal concerns. These are, first, unnecessary hysterectomies that were carried out at Our Lady of Lourdes Hospital, Drogheda; and second, the case of Savita Halappanavar whose 17-week pregnancy ended in miscarriage and her death in University College Hospital Galway (UCHG) on the 28 October 2012. Even though these cases are very different from one another in many respects, they also share important similarities. They provide evidence of not only a profound unease with women’s reproductive capacity but also the influence of Catholic norms on healthcare practice, and the denigration of women’s moral authority, agency and professional credibility (sometimes by women themselves). These are two examples among many in recent times where these kinds of factors have led to the abuse and deprecation of women in Ireland (McAleese, 2013; Walsh, 2013).

My feminist reading of these different situations draws attention to the power and power differentials inherent in moral relationships at individual, organisational and societal levels and adopts Margaret Urban Walker’s feminist ethics perspective, which she summarises in the following way:

We welcome all relevant scientific data but believe that the social situations of both science and morals must be kept in view, paying attention to differences of social and institutional position, perspective, and power that determine which voices and whose interests and experiences are audible and authoritative in ethics as elsewhere (Walker, 2009: 5)

Key to my analysis is a desire to understand the mechanisms by which the voices and concerns of the women at the centre of these two cases were ignored, marginalised and trivialised. I address each case in turn, paying particular attention to the way in which an excess of moral authority was vested in religious leaders, religious doctrine and doctors and a correlated lack of authority was invested in women patients and midwives.

Unnecessary hysterectomies at Our Lady of Lourdes Hospital

When a small number of young and newly trained midwives in Our Lady of Lourdes Hospital Drogheda brought their concerns about the high rate of hysterectomies being carried out in their maternity unit to the attention of authorities in the hospital and the Irish Health Board in 1998, they initiated a course of events that eventually led to the suspension and deregistration of Michael Neary, the consultant obstetrician/gynaecologist responsible for the bulk of these hysterectomies. The government-appointed inquiry, undertaken by Justice Maureen Harding Clark, subsequently determined that many of Neary’s gynecological patients as well as his obstetric patients were subjected to unnecessary hysterectomies and/or oophorectomies (McCarthy et al., 2008). A brief excerpt from the Report describes the experience of one woman and draws attention to the normalisation of surgical hysterectomies in the maternity unit:

Dr Neary asked her to attend as a day patient for a D&C. She was aware of the routine involved in a diagnostic D&C procedure.… When she woke in pain she knew something had happened. She learned that she had undergone a total abdominal hysterectomy with removal of her ovaries and fallopian tubes. Dr Neary informed her that he had to carry out a hysterectomy, as he ‘could not stop the bleeding’. Later she was told that she did ‘not have any cancer’. This was not a possibility that had ever been discussed with her. The histology reported no disease but rather ‘degenerate products of conception and a collection of endometrial polyps’. The operation notes and the request for histology indicate that Dr Neary believed when he carried out the hysterectomy that she had advanced uterine cancer. (Harding Clark, 2006: 159–60)

Women’s bodies, fertility and well-being

Evidence from several sources: the Harding Clark Report (2006); the transcripts from the Irish Medical Council Fitness to Practice Committee (2000) and the court cases taken against Michael Neary paint a grim picture of the maternity services that were provided to many women up to and including Neary’s tenure at the hospital (1974–98). The Report notes how habituated health professionals had become to the hysterectomies themselves – one incident is recounted where a junior anaesthetist and midwife talked about a TV programme while a bucket with a uterus in it was carried past – ‘[t]he normal curiosity for reasons why unusual outcomes happened simply did not occur’ (Harding Clark, 2006: 160). The Report also refers to outdated practices such as midline instead of bikini line incisions, putting birthing women into the lithotomy position and rectal rather than vaginal examinations. The Fitness to Practice Committee of the Irish Medical Council cite one witness who alleges that in his response to her query as to why he had to remove one of her ovaries, Neary responded, ‘I did not like your bloody ovary anyway’ (Irish Medical Council, 2000: 144). The same witness notes elsewhere that Neary compared her to a car that breaks down and told her ‘that if [she were] to see the bloody mess inside [her] he had to clean up’ (Irish Medical Council, 2000: 146).

This attitude towards women was not exceptional. Discomfort and unease with women’s embodiment and reproductive capacity is evidenced in the broader culture of the time as well as in the practices of Neary’s colleagues. For example, in the 1970s and 1980s, Gerard Connolly, the senior obstetrician in Our Lady of Lourdes Hospital prior to Neary, carried out the highly painful and traumatic symphysiotomy procedure, which involved enlarging the capacity of the pelvis by cutting through the pubic bone in cases where labour was obstructed, long after medical evidence demonstrated that a caesarean section was a safer clinical alternative. One of the reasons that caesarean sections were not favoured by Catholic-run hospitals was because repeated caesarean sections were considered dangerous for women. Therefore, repeated pregnancies would be dangerous and would have to be avoided, prompting the need to use artificial methods of birth control. In short, many symphysiotomies were carried out in order to meet religious, not clinical, imperatives (Institute of Obstetricians and Gynaecologists, 2012; Morrissey, 2012; Walsh, 2013).

Moral authority as religious authority

The proliferation and continuance of such harmful practices as symphysiotomies was due, in part, to the historical and ongoing influence of Catholic doctrine and authority on Irish law, education and medical practice. In the years after Ireland succeeded in gaining independence from Britain, the legislature, dominated by members who adhered to a Roman Catholic moral code, banned divorce (1925), prevented the dissemination of literature on contraception (1929) and the import and sale of contraceptives (1935). As Oaks (1999) points out, the focus of Irish legislation in this regard has been on women’s reproductive not productive lives evidenced by the marriage ban in the civil service (eventually removed in 1973). In practice, these restrictions meant that many thousands of Irish women were, effectively, forced to have large families until the (restricted) legalisation of contraception in 1980.

The Harding Clark Report indicates that the Catholic religious sisters, the Medical Missionaries of Mary (MMMs), who ran Our Lady of Lourdes Hospital until 1997, regularly appealed to Church laws and doctrine and consulted various clergymen on clinical issues that raised moral worries for them. On the matter of hysterectomies, they were, in fact, out of step with other Catholic hospitals in that their hospital code of ethics did not permit sterilisation – tubal ligation – even if it was indicated on medical grounds for a serious pathological condition of the uterus. Only ‘indirect’ sterilisation, a hysterectomy that removed the ‘diseased organ’, was the accepted practice (Harding Clark, 2006: 42).

In one case recounted by Michael Neary to the Harding Clark inquiry, a patient asked him to carry out a medically indicated tubal ligation at the same time as a caesarean section. The patient had herself, prior to this, sought the views of a moral theologian who had advised that, in her case, tubal ligation was permitted as the primary intention was to prevent her death or serious ill health in a future pregnancy. Neary consulted the matron on the matter, who in turn consulted the MMMs. Unhappy with the advice of the theologian the sisters sought the opinion of a cardinal and a bishop. Both men argued that the tubal ligation should be refused. According to the bishop:

[t]he Church’s thinking regarding this operation is very clear. It does not depend on circumstances nor on certain thinking among some theologians. One must seek the solution outside of direct sterilisation which can only be wrong in itself … If we had exceptions we would not maintain Catholic standards. No diversity of opinion can be permitted. (Harding Clark, 2006: 244)

Consultant authority

While religious leaders were vested with moral authority to grant or refuse permission to clinicians to act on patient requests or their own clinical judgement, consultants too were able, within limits, to exercise their moral agency. In the situation, referred to above, Neary vehemently defended the woman’s medical need for a tubal ligation. Further, in another testimony to the Fitness to Practice Committee, one of Neary’s patients reports that remarking on her RC (Roman Catholic) status at the top of her chart, he admitted that ‘according to Church law he should never have laid a finger on me. He had a pile of books on the desk. Slapping his hands on them he said “I did an abortion for you”. He went on to say that I was ungrateful’ (Irish Medical Council, 2000: 146). In both of these cases, Neary appears to regard himself as acting on the basis of his moral conviction to benefit two of his patients. Moreover, one of the justifications that he offered the Inquiry for the significant number of hysterectomies that he carried out was that they were prompted by medical concerns in relation to further pregnancies. These are described as ‘indirect sterilisation’ or ‘compassionate hysterectomies’ (Harding Clark, 2006: 236, 244).

The moral authority of women patients and midwives

The question remains, what of the moral authority of the women patients¹ and of the midwives? The evidence demonstrates that the requests of the patients (some of whom, as Catholics themselves, appealed to the authority of some theologians) were ignored in favour of either Church law or leaders, or the occasional intervention by their doctor. Their questions about their ‘treatment’ were not answered; their concerns were trivialised; their voices were silenced (Irish Medical Council, 2000; Harding Clark, 2006).

Within such a system, the midwives were also constrained by predetermined gender-roles/scripts that they were assigned and were expected to conform to, and by the power structures within which they operated. In contrast to the MMMs and the consultants in Our Lady of Lourdes Hospital, the midwives and nurses seemed to have little or no moral authority or space for raising moral concerns. Harding Clark notes:

The sisters belonged to an era when nurses were efficient, ordered and respectful. They carried out orders and did not question consultants. Matron maintained a formal, distant authority over nurses. The nuns who had set the practices and protocols for training nurses and midwives in the hospital in the 50s thus produced suitable nurses who fitted their mould – hardworking, respectful, Catholic nurses who were well trained, knew their place, trusted the consultants and suspended their critical or questioning faculties. They were trained to certain tasks – and to those tasks only. (Harding Clark, 2006: 41)

The Report notes that, in reality, the Matron of the maternity unit did not have any power or authority to question the consultants. This lack of power meant that many midwives believed, rightly, that ‘there was no point in complaining to her’ (Harding Clark, 2006: 157).

Harding Clark describes a minority of the midwives in the unit as having no concerns about the consultants’ activities and the rate of hysterectomy. They saw themselves as ‘disempowered’ by the consultants and in the role of ‘handmaidens to the consultants’; their job was to ‘anticipate the consultants’ needs’ (Harding Clark, 2006: 190). A second group, in the majority, were described as ‘decent, hard-working caring women’ who were ‘deeply shocked’, tearful when giving testimony, and blamed themselves for not suspecting anything. They knew and liked Neary, found him to be far more personable and approachable than others and believed that ‘he never deliberately meant to harm anyone’ (Harding Clark, 2006: 190). A third group of mainly junior midwives and a newly appointed part-time practice development nurse and midwifery tutor were more critical, according to the Report. They believed that peripartum hysterectomies were unnecessary in certain cases but they were not confident that their concerns were well-founded because other senior midwives and even newly appointed doctors had made no complaint. This third group found no support among their colleagues – in fact they were admonished when they did raise concerns:

Ann made her concerns regarding a caesarean hysterectomy carried out by Dr Neary known to her colleagues immediately after an incident in theatre, where she questioned why she should ‘fetch the hysterectomy clamps’. Her colleagues either did not wish to countenance such criticisms, or found reasons to disprove her perceptions. (Harding Clark, 2006: 188–9)

The events at Our Lady of Lourdes Hospital raise serious questions about the lack of moral authority vested in women patients and midwives. A second case which highlights ongoing failures in relation to reproductive justice in Ireland is that of Savita Halappanava...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright
• Contents
• Contributors
• Series editor’s foreword
• Introduction: Mary Donnelly and Claire Murray
• Part I Context and care
• Part II Rights and responsibilities
• Part III Regulating research
• Part IV Oversight of decision-making
• Index